February 06, 2007

Libby's Theory Of His Defense

Libby's defense team has posted their theory of his defense, some version of which ought to be included in the final jury instruction (Jeralyn Merritt explains this).

The .pdf is only two pages but the very short version is, Libby forgot but the errors were innocent and the information was trivial.

No surprise, but... I question this:

Mr. Libby further contends that when the investigation began he was confident that... he had not disclosed classified information about Mr. Wilson or his wife to any other reporters.

Really? I am confident Libby could argue that there is no evidence that he was aware that Ms. Wilson's status was classified at the time he disclosed it [which would be relevant under the IIPA or the Espionage Act]. However, is he really going to convince the court that as of October 2003 he was "confident" that Ms. Plame's status was not classified? Addington (OVP Counsel), Schmall (CIA briefer) and some newspaper articles Libby marked up all suggest that he was aware of such a possibility.

Comments

My understanding of your argument is that Libby, months later, may have confused the sequence of the conversations with Fleischer and Russert, not that Ari's memory of his conversation with Libby was necessarily inaccurate. Correct?

Though I also find Ari's story implausible. Also not mentioned is the fact the "incompetence" bit was aimed at least partially at Ari, and his departure wasn't all sweetness and light::

F: And incompetence of others?

L: Uranium claim getting into SOTU in frist place, then early in July, backing off. One or both.

Ah, Ari Fleischer's last week. Coincidence? No mention at lunch? Perhaps why he doesn't want to talk to Libby's lawyer?

I am not aware of any subsequent meeting between these two being testified to.

Not the point. Libby three months later might've misremembered the conversation with Ari as happening after the conversations with reporters. (Or forgotten the Plame part of it ever happened even if it happened . . . and I suspect it never did.)

Russert is at the courthouse. Fox showed him getting out of his car and he is on crutches. He looks very unkempt and dumpy, BTW. Even the Fox reporter mentioned he sure doesn't look like he does on TV.

FWIW, I commented some time ago (but after Libby published his theory of defense) to the notion that the prosecution has to "rule out every possible defense." My comment was that usually, the defendant provides a single theory, thus narrowing the field of relevant speculation and doubt.

Well, I think you were responding to me, and the criteria is not exactly "rule out every possible defense" but instead more like rule out each and every innocent theory that fits the evidence. (I suppose those are the same things depending upon your definition of "every possible defense" -- if a defense is a reasonable explanation of the evidence, and it is one where the defendent is innocent, then it's a "possible defense")

While I agree that tactically it's probably not a good idea in most cases to overwhelm the jury with multiple mutually-exclusive scenarios, it is surely within the defendent's constitutional right to put on whatever defense he wants. And we've gone on at some length that this case is strikingly different from other criminal investigations in that it is the prosecution who is continually trying to hide information and the defense who is trying to get it admitted, and all of the obvious leads that the investigators ignored.

So in this case in particular, there is a laundry list of possibilities (Judy Miller told Libby, Woodward told Libby, some other reporter told Libby, Armitage was the source, Powell was the source, Grossman was the source, Wilson & Plame told Kristof, Wilson & Plame told Pincus, Wilson & Plame told who knows how many others, they talked to nobody knows who, we don't know what dates, Wilson told Calibresi who told Cooper, Wilson told Democratic senators who told their staffs who told Cooper's wife who told Cooper, Ari lied, Ari made a simple-to-make mistake, etc., etc.) that Fitzgerald is completely oblivious to and never investigated. End the argument with "God only knows who knew what when because Mr Fitzgerald wasn't interested, and God can't testify because of separation of Church and State" and you leave the jurors with smiles on their faces and the nagging suspicion that Fitzgerald is playing them for idiots.

And furthermore, the level of complexity which Team Libby should use in their motions to the judge for a directed verdict is not necessarily the same level of complexity that is wise to use with the jury. If there are multiple sources of "reasonable doubt" then why shouldn't the defense brief all of them? I'm sure the judge is smart enough to keep it all straight -- they don't give out those JD's for nothing, after all.